Joint Meeting
Los Angeles Chapters of ACM,
the IEEE Computer Society,
IEEE Society on the Social Implications of Technology (SSIT),
Computer Professionals for Social Responsibility (CPSR);
and the IEEE Foothill Section

Wednesday, October 10, 2001
(Note Date is 2nd Wednesday)

"The Innovation Commons"
A Talk on Internet Architecture
 and Public Policy

Lessig clerked for Judge Richard Posner of the 7th Circuit Court of Appeals, and for Justice Antonin Scalia of the U.S. Supreme Court. He teaches and writes in areas including constitutional law, contracts, comparative constitutional law, and the law of cyberspace.

His book, "Code, and Other Laws of Cyberspace," is published by Basic Books. Prof. Lessig's essays appear regularly in the press, and his second book is due this year from Random House. He has consulted extensively with policy makers, testified before Congress, and been active in Internet litigation, e.g. as a Special Master for Judge Thomas Penfield Jackson in the Microsoft antitrust case (prompting Time magazine to call him a "leading thinker on how to adapt ancient principles to the new digital age.").

In 1999-2000, Prof. Lessig was a fellow at the Wissenschaftskolleg zu Berlin. He is Of Counsel to the Los Angeles-based law firm of Munger, Tolles and Olson, and also serves on the board of the Electronic Frontier Foundation (www.eff.org).

This was a joint meeting of the Los Angeles Chapter of ACM, the IEEE Computer Society, IEEE Society on the Social Implications of Technology (SSIT), Computer Professionals for Social Responsibility (CPSR); and the IEEE Foothill Section.

Professor Lessig said: "I come from a culture that should lead you to be skeptical. I produce lawyers for a living." The extraordinary opportunity of the original architecture of the network is very quickly being remade by lawyers.

There are three layers of the Internet:
1. Physical
2. Code
3. Content

The physical layer is the machines and the wires, the code is composed of the basic protocols that run the system, and the content is a chunk of software that makes the network run, the operating systems, text and other things. In each layer there is an important mix of free and controlled things. The physical layer has machines and wires that are owned and that layer has rules giving access to telephone lines as public carriers. It is not cost free, but is free to access. The content has some things controlled and others free. Open Source provides free content and coexists with controlled resources. In the code layer the network architecture is designed to have no control over things that go across the network and is designed for flexibility. The founders had no clue over what the network eventually could do, and so made it very general in capability, vested in a commons. Everyone had equal access and no one could refuse assets in a discriminatory way. The choice was vested in users at the edge of the network and things were developed in the way users wished. The code layer is available for use by anyone and is a weird mixture of free and controlled resources. The network could support things users wanted to run and did not have the power to control them.

It is different from the telephone network, which was very much controlled. AT&T did not like a packet switched network and they did not want to allow outside control over what passed over the network. They did not like user control as they wished to control the networks for their own advantage and profit. Some people feared copyright would be destroyed, the Internet threatened both hardware and content owners. As the network moves from the telephone network to cable or wireless the regulatory environment changes. Cable developed methods that discriminate and provide control by the network owner. The architecture competes with the Internet architecture and this is happening in wireless as well as cable. The government controls the spectrum and allocates frequencies. Old spectrum owners successfully get the government to control things to prevent competition and businesses want to preserve the scarcity of resources whether required by the technology or not.

Things are more depressing at the content level with the definition of intellectual property. The fact is these layers are licensed in terms that refer to property and most people in the world are not licensed to use the word property. When we lawyers use the term property we mean something very specific, a set of government granted powers that are limited in all sorts of ways according to public interest. People think of property as something that they have for all time and that is controlled perfectly against anyone else who wants to use it. The government has backed monopolies of intellectual property and adopted this power to improve progress. Congress enacted in 1790 a copyright status to authors so publication was limited, but derivative works were not prevented by copyright. Action had to be taken by the author to establish a copyright. Copyright law has changed dramatically and copyright length has been increased from 14 to 70 years, with some possible extensions to 140 years. Congress has extended protection eleven times in the last 40 years. Scope has increased to the point that it covers all copying which affects everyone who has a computer. Copyright is now automatic upon the production of material and it is a felony to copy things until permission is obtained. An extraordinary amount of work falls into a "black hole" because it is difficult or impossible to determine whom the original author. The law is wrong and very out of balance.

The first Napster was the cable television industry that transmitted TV signals produced by others to customers over their cable system. The courts permitted transmitting TV and then Congress required the cable companies to pay for rebroadcasting, but required access to all cable TV owners. Internet content producing companies wanted to pay for use of cable networks but be allowed to transmit over the system. Courts did not allow this view and Congress has driven us into the hands of those who want perfect and complete control of intellectual property. This is different from the Internet lack of control and insight is being remade from pressure at the physical layer and the content layer. provided by lawyers and a "plantation owner" psychology. . Professor Lessig issued a plea that we should resist the attempts of lawyers to control the system. He said that we, the technologists, have the credibility to help fight them and that the lawyers don't have the credibility to fight the current attempts to control intellectual property. The relatively few lawyers who are fighting this situation need help from the people who understand the technology.

Mike Walsh, LA ACM Secretary